Full opinion text
MEMORANDUM OPINION AND ORDER RE MOTIONS FOR SUMMARY JUDGMENT ISHII, District Judge. This action challenges the reconstruction project by the National Park Service (“NPS”) regarding Highway 140 from Yosemite National Park’s western border to the Pohono Bridge (“the El Portal Road” or “the Road”). Plaintiffs originally sought to enjoin Defendants from taking any steps towards the continuation of the El Portal Road reconstruction project (“the Project”) until the NPS provides necessary consideration of all significant environmental effects in compliance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”), the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq. (“WSRA”), the National Park Organic Act, 16 U.S.C. § 1, et seq., and the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq. Plaintiffs also seek various related types of declaratory relief. On May 6, 1999, Plaintiffs filed a motion for summary judgment. On May 25, 1999, Defendants filed an opposition and counter motion for summary judgment. This court has jurisdiction over Plaintiffs NEPA, WSRA, and Organic Act Claims pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-706. Venue is proper in this district. In Plaintiffs’ First Amended Complaint, they seek relief as set forth below: 1. A judgment declaring that the EA, FONSI, and the Biological Assessment for the El Portal Road Improvement Project are not in compliance with procedures and requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370(d) and the applicable CEQ regulations, 40 C.F.R. §§ 1500-1517.7, and are therefore null and of no legal force and effect; 2. A judgment and order enjoining the defendants preliminarily and permanently from implementing the El Portal Road Improvement Project pending the outcome of the development and issuance of a legally adequate Environmental Assessment and Environment Impact Statement in compliance with NEPA; 3. A declaratory judgment that defendants violated the APA by failing to adopt a comprehensive management plan for the Merced River which flows through'the Yosemite National Park, pursuant to the Wild and Scenic Rivers Act; 4. A declaratory judgment that defendants violated the APA by failing to develop revisions to the Yosemite National Park General Management Plan, to comply with 16 U.S.C. 1274(b), that assures that no development or use of park lands shall be undertaken that is inconsistent with the Wild and Scenic River Act designation of the Wild and Scenic River segments of the Merced River that are within the boundaries of Yosemite National Park and the El Portal Administrative Unit; 5. A declaratory judgment that defendants violated the APA by failing to protect and enhance the' values of the Merced River as a designated scenic river under the Wild and Scenic Rivers Act; 6. A judgment and order enjoining the defendants primarily and permanently from implementing the El Portal River Improvement Project for violations of the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq.; 7. A judgment declaring that the actions of the defendants as set forth in this complaint are arbitrary and capricious, an abuse of discretion, not in accordance with the law, and without observance of procedures required by law, pursuant to the Administrative Procedures Act, 5 U.S.C. § 706(2); 8. A judgment declaring that the actions of the defendants as set forth in this complaint are in violation of the Organic Act and the Yosemite National Park 1980 General Management Plan; 9.A judgment ordering the Department of the Interior, NPS and their respective officials to immediately prepare, after consultation with the . public, and before any other planning decisions are made which could in any way impact or alter the Wild and Scenic Merced River corridor, a comprehensive management plan in accordance with § 1274(d) of WSRA. In response to a request from the court, Plaintiffs supplied in their Supplemental Brief filed June 25, 1999, an updated and specific explanation of the injunctive relief they seek. Plaintiffs seek the following in terms of injunctive relief: 1) an order enjoining any additional work in the Merced River corridor pending adoption of a comprehensive management plan; 2) an order requiring Defendants to amend the Yosemite Valley General Management Plan to ensure there will be no development contrary to the purposes of WSRA; 3) avoid any work on the Road in Segment D; 4) an order protecting very specifically delineated sections of vegetation and riparian habitat in Segments A, B and C; 5) an order requiring completion of the revege-tation plan; 6) appointment of an impartial bat expert to evaluate the current status of bat roosts along El Portal Road, and make recommendations for mitigating impacts; 7) appointment of an oversight committee to evaluate the outstandingly remarkable values of the Merced River and assess the viability of protecting and enhancing those values in conjunction with the Project; 8) require Defendants to prepare and circulate an EIS for the El Portal Road Project before an additional work is performed. CHRONOLOGY January 2, 1997 A winter storm caused Yosemite National Park and the El Portal Road to suffer damage. May 7, 1997 National Park Service (“NPS”) issued a draft Environmental Assessment (“EA”) for the Project for public review. June 16, 1997 Public comment period ended. August 22, 1997 Revised or Final EA issued. August 28, 1997 NPS issued the Finding of No Significant Impact (“FON-SI”) for the project for a three-year construction contract. August 28, 1997 Phase I design plans approved. January 19, 1998 Compliance Feasibility Paper issued. February 20, 1998 Request for Proposals issued. August 5, 1998 NPS modified the FON-SI to change the project so as to be implemented with a two-year construction schedule. PRELIMINARY CONSIDERATIONS Plaintiffs and Defendants have moved to exclude declarations submitted by the opposing party in support of their motion for summary judgment. It is undisputed that the focal point for judicial review is the administrative record before the agency at the time of the agency’s decision and “not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). There are, however, exceptions to this general rule. In Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), the Ninth Circuit explained as follows: However, certain circumstances may justify expanding review beyond the ree-ord or permitting discovery. See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). The district court may inquire 'outside the administrative record when necessary to explain the agency’s action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The court’s inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. [Friends of Earth v.]Hintz, 800 F.2d[822] at 829[(9th Cir.1986)]. The district court may also inquire outside of the administrative record “when it appears the agency has relied on documents or materials not included in the record.” Id. In addition, discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action. Id. In the present case, the court finds that all of the declarations at issue fall into one of the above exceptions. While the court has not relied exclusively on any declaration to reach its conclusion as to any of the issues presented, it has found the declarations helpful in understanding the factual complexities of this casé. Accordingly, the objections of all parties to the declarations filed in this action are overruled. LEGAL STANDARD Plaintiffs seek various forms of injunc-tive relief against the El Portal Road Improvement Project (“the Project”). The United States Supreme Court has explained as follows: It goes without saying that an injunction is an equitable remedy. It “is not a remedy which issues as of course,” Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 337-338, 53 S.Ct. 602, 603, 77 L.Ed. 1208 (1933), or “to restrain an act the injurious consequences of which are merely trifling.” Consolidated Canal Co. v. Mesa Canal Co., 177 U.S. 296, 302, 20 S.Ct. 628, 630, 44 L.Ed. 777 (1900). An injunction should issue only where the intervention of a court of equity “is essential in order effectually to protect property rights against injuries otherwise irremediable.” Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S.Ct. 142, 143, 63 L.Ed. 354 (1919). The Court has repeatedly held that the basis for injunctive relief in the federal courts' has always been irreparable injury and the inadequacy of legal remedies. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 95 S.Ct. 2069, 2077, 45 L.Ed.2d 12 (1975); Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507, 79 S.Ct. 948, 954-955, 3 L.Ed.2d 988 (1959); Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 591. Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at a “nice adjustment and reconciliation” between the competing claims, Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 592. In such cases, the court “balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.” Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 675, 88 L.Ed. 834 (1944). “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mold each decree to the necessities of the particular case. Flexibility rather than rigidity has -distim guished it.” Hecht Co. v. Bowles, supra, 321 U.S., at 329, 64 S.Ct., at 592. In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Railroad Comm’n. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941). Thus, the Court has noted that “[t]he award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff,” and that “where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.” Yakus v. United States, supra, 321 U.S., at 440, 64 S.Ct., at 675 (footnote omitted). Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). The Court later summarized its holding in, Weinberger as follows: We reviewed the well-established principles governing the award of equitable relief in federal courts. Id., at 311-313, 102 S.Ct., at 1802-1804. In brief, the bases for injunctive relief are irreparable injury and inadequacy of legal remedies; In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Although particular regard should be given to the public interest, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Id., at 313, 102 S.Ct., at 1803. Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). The review of final agency action is governed by the Administrative Procedure Act under an “arbitrary or capricious” standard. 5 U.S.C. § 706(2)(A). Absent a showing of arbitrary action, a court must assume that an agency has exercised its discretion appropriately. Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). An agency’s decision should be overturned if it was “arbitrary, capricious, an abuse of discretion, other otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). The Ninth Circuit has explained review of agency decisions as follows: Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (Marsh). We must determine whether the agency’s decision was made after considering the relevant factors and whether the agency made a clear error of judgment. Id. at 378, 109 S.Ct. at 1861. We may reverse the agency’s decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1521 (9th Cir.1995). Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 900 (9th Cir.1996), cert. denied, 519 U.S. 822, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996). In specific reference to review of a decision whether to prepare an Environmental Impact Statement (“EIS”), the Ninth Circuit has stated: We review the Corps’s decision not to prepare an EIS under an “arbitrary and capricious” standard of review. Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir.1992). Using this standard, we consider only whether the Corps’s decision is based on a “reasoned evaluation of the relevant factors.” Id. at 1332. We will overturn the Corps’s decision only if the Corps committed a “clear error of judgment.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 385, 109 S.Ct. 1851, 1856, 104 L.Ed.2d 377 (1989). California Trout v. Schaefer, 58 F.3d 469, 473 (9th Cir.1995). DISCUSSION I. NATIONAL ENVIRONMENTAL POLICY ACT A. The NEPA Process This action is brought in part pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. and the implementing regulations which are codified as 40 CFR §§ 1500-1508. The Ninth Circuit has summarized the process under NEPA as follows: “The purpose of NEPA is to assure that federal agencies are fully aware of the impact of their decisions on the environment.” Friends of the Earth v. Hintz, 800 F.2d 822, 836 (9th Cir.1986) (citing Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 985 (9th Cir.1985)). To fulfill that purpose, NEPA requires all federal agencies to .prepare an EIS for “major federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). To determine whether an EIS is necessary, the agency first prepares an EA, which briefly describes the need for, alternatives to, and environmental impacts of the proposed federal action. 40 C.F.R. § 1508.9 (1994). If the environmental agency determines in the EA that the federal action will not significantly affect the environment, it makes a “finding of no significant impact” (FON-SI) and its NEPA review ends. Id. § 1508.13. California Trout v. Schaefer, 58 F.3d 469, 472 (9th Cir.1995). The statute defining “environmental assessment is 40 CFR § 1508.9, which provides as follows”: “Environmental Assessment”: (a) Means a concise public document for which a Federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. (2) Aid an agency’s compliance with the Act when no environmental impact statement is necessary. (3) Facilitate preparation of a statement when one is necessary. (b) Shall include brief discussions of the need for the proposal, of alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted. “Effects” is defined in 40 CFR § 1508.8, which provides as follows: “Effects” include: (a) Direct effects, which are caused by the action and occur at the same time and place. (b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. Pursuant to 40 CFR § 1501.4, a federal agency contemplating a project must determine whether to prepare an environmental impact statement. In doing so, the agency must determine under its procedures supplementing the NEPA regulations whether the proposal is either one that normally requires an environmental impact statement or one that normally does not require either an environmental impact statement or an environmental assessment. 40 CFR § 1501.4(a). If the proposed action is not covered within either of these categories, the agency is required to provide an environmental assessment (“EA”) pursuant to 40 CFR § 1508.9. 40 CFR § 1501.4(b). Based on the EA, the agency determines whether to prepare an environmental impact statement (“EIS”). 40 CFR § 1501.4. If the agency determines not to prepare an EIS it must prepare a finding of no significant impact (“FONSI”) and make the finding available to the affected public as specified in § 1506.6. 40 CFR §§ 1501.4(e). A FONSI means a document briefly presenting the reasons why the action will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. 40 CFR § 1508.13. In the present case, Plaintiffs contend that NPS violated these principles by failing to develop an EIS for the Project. Specifically, Plaintiffs contend that Defendants violated NEPA by failing to consider all pertinent direct and indirect effects of the Project in its EA and FONSI, including degradation of the Merced River Corridor and cumulative effects of the Project. Plaintiffs also contend that Defendants inadequately responded to public comments and improperly concluded that a comprehensive EIS was not required because the Project would not significantly affect the human environment. The Ninth Circuit has summarized the court’s role in review an agency’s decision’s in regard to NEPA requirements as follows: A court should not substitute its judgment for that of the agency as to the environmental consequences of the agency’s actions. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). The only role for a court is to insure the agency has taken a “hard look” at environmental consequences. Id. An agency’s determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable. Foundation for North Am. Wild Sheep v. U.S. Dep’t of Agriculture, 681 F.2d 1172, 1177 (9th Cir.1982). In judging “reasonableness,” “[a] court should not substitute its judg-. ment for that of an agency if the agency’s decision was ‘fully informed and well-considered.’ ” Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.1985), (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978)). B. Why NEPA Requirements Were Not Met Section 102(2)(C) of NEPA requires that all federal agencies include a detailed statement of environmental consequences — known as an EIS — “in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Kleppe, 427 U.S. at 394, 96 S.Ct. at 2723. The Council on Environmental Quality (CEQ) has promulgated regulations, see 40 C.F.R. §§ 1500-17 (1984), which bind federal agencies in implementing this requirement. Id. § 1500.3. Under the CEQ regulations an agency generally must prepare an EA to decide whether an EIS must be prepared. Id. § 1501.4(a), (b), (c); Jones v. Gordon, 792 F.2d 821, 827 (9th Cir.1986). CEQ regulations outline factors that an agency must consider in determining whether an action “significantly” affects the environment within the meaning of section 102(2)(C). These factors include, inter alia, (1) the “degree to which the effects on the quality of the human environment are likely to be highly controversial,” 40 C.F.R: § 1508.27(b)(4); (2) the “degree to which thq possible effects on the human environment are highly uncertain or involve unique or unknown risks,” 40 C.F.R. § 1508.27(b)(5); (3) “[wjhether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by ... breaking [the action] down into small component parts,” 40 C.F.R. § 1508.27(b)(7); and (4) “[w]hether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment,” 40 C.F.R. §, 1508.27(b)(10). The standard to determine if an action will significantly affect the quality of the human environment is whether “the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor.” Foundation, 681 F.2d at 1177-78 (quoting Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585, 597 (9th Cir.1981)). “A determination that significant effects on the human environment will in fact occur is not essential.” Id. at 1178. “If substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared.” Id. (emphasis omitted). Sierra Club v. United States Forest Service, 843 F.2d 1190, 1192-93 (9th Cir.1988). B. Defining the Project Plaintiffs contend that Defendants failed to adequately define the Project. In their motion for summary judgment, Plaintiffs claim that the “design/build” method of construction used on the Project caused an inadequate description of the Project and prevented a sufficiently detailed analysis of both environmental values and effects of the project by NPS. Plaintiffs argue that lead agencies must identify environmental effects and values in adequate detail so that they can be subject to economic and technical analysis, relying on 40 C.F.R. § 1501.2 which provides in part as follows: Agencies shall integrate the NEPA process with other planning at the earliest possible .tíme to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts. Each agency shall: (b) Identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses. Environmental documents and appropriate analyses shall be circulated and reviewed at the same time as other planning documents. Plaintiffs also rely on 40 C.F.R. § 1502.14, which is not on point because it concerns environmental impact statements, not environmental assessments. More on point is 40 C.F.R § 1500.1(b), which provides: (b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate on the issues that are ■ truly significant to the action in question, rather than amassing needless detail. In their motion for summary judgment, Plaintiffs specifically contend that because of the nature of the “design-build” project, NPS performed a substantial amount of analysis nearly six months after the FON-SI was issued. Plaintiffs claim that the post-decision Compliance Feasibility Paper and attached Cost Consideration Compliance Table for El Portal Road Improvements, Working Draft, January 19, 1998 (4 AR 01128-1141) demonstrates that NPS considered such items as not removing Cascade Dam, eliminating mitigation measures to cultural and historic resources, increasing cut walls, moving staging areas to sensitive species locations, expanding the road footprint and eliminating sewer repair requirements. Plaintiffs argue that NEPA and CEQ regulations specifically require this type of analysis to be performed prior to the decision'on a project. Plaintiffs argue that it was only at the later date that NPS actually defined the Project parameters, thereby skewing the impact analysis. Plaintiffs also rely on the declarations of Kattlemann and Sanders to argue that the description of the Project as “design/build” is inadequate and prevents a sufficiently detailed analysis of environmental values and effects of the project. Defendants dispute Plaintiffs’ contention that the Compliance Feasibility Paper, dated January 19, 1998, demonstrates that the parameters were not defined until six months after the FONSI was issued. Defendants explain that the Compliance Feasibility Paper came about because the initial proposals from potential contractors in response to the “request for proposals” contained costs far beyond the available funding for the Project. The purpose- of the Compliance Feasibility Paper was to explore possible ways to meet the Project objectives with available funds and within the parameters of the decisions made in the EA and FONSI. The cost cutting suggestions primarily addressed construction schedules, staging areas, and use of simulated stone in cut slope' walls and drainage systems. Expansion of the allowable footprint of the roadway was specifically rejected because it was recognized that it would be a change beyond the scope of the FONSI. Defendants argue that these same issue would have been faced if the Project had used competitive sealed bidding (instead of design/build construction) and the bids had come in too high. In response to Defendants’ arguments regarding the Compliance Feasibility Paper, Plaintiffs argue that there were numerous proposed changes set forth, with no commitment either way that they would or would not be implemented. Some of these appear significant, such as “eliminate all but the most basic temporary revegetation requirements,” 4 AR 01133, “eliminate dam removal,” 4 AR 01134, and changes in the staging areas. Plaintiffs argue that there is now no guarantee as to what the contractor and defendants will now accept or reject as elements of the Project, considered beyond the analysis and public NEPA process of the EA and FONSI. In general response to Plaintiffs’ contention that the design/build construction of this project has led to an inadequate description of the Project, Defendants first contend that both the draft and revised EA explicitly stated that “design/build” construction would be used for the Project. Defendants argue that if Plaintiffs objected to the use of the design/build method, any necessary litigation should have been initiated at that time, prior to the award of the design/build contract. In further response to Plaintiffs’ contentions, Defendants argue at length that the Project was adequately described. Defendants argue that a 93 page preliminary design existed in the form of Phase I design plans, which were incorporated by reference into the Revised Environmental Assessment. Defendants assert that these engineering drawings, defined the scope and limits of the Project in detail on a station by station basis. Defendants state that these details included a preliminary alignment which defined the new Road alignment for impact purposes and the envelope where the contractor would be allowed to work. The plans further identify specific features and elements along the roadway which must be saved or avoided. Defendants claim that the Phase I design plans (70 AR) contained a preliminary alignment that showed' the footprint of the Project and enabled NPS to calculate for the EA and FONSI the size of the area that would be impacted. Finally, Defendants argue that mitigation measures were incorporated into the Project to minimize identified environmental impacts below the level of significance. The mitigation measures are specific and are included in the EA. Specifically, as to the use of design/build, the Park Service imposed additional conditions including a staff of resource specialists (landscape architect, biologist, revegetation specialist, and archeologist) to conduct inspections and “to ensure that the reconstruction activities do not exceed the scope of the EA.” The mitigation measures are binding, and the contracting officer has authority to stop work of the contractor fails to carry out his written orders or perform contractual provisions. In their Reply, Plaintiffs reiterate at length their claim that the design/build nature of the Project, did not provide an adequate project description. In response to Defendants’ claim that the Phase I design plans were incorporated by reference into the Revised or Final EA, Plaintiffs correctly argue that both the Phase I design plans and the Request for Proposal (“RFP”) were developed after the close of public comment, so that the public did not have an opportunity to review and comment upon them. Plaintiffs also correctly point out that the Final EA, into which Defendants incorporated by reference the Phase I design plans, was not subject to public comment. The Phase I plans were not approved until August 28, six days after the Revised EA was issued, and the same day as issuance of the FONSI and approval of the project. 4 AR OHIO, 70 AR 07307. Similarly, Plaintiffs assert that the Biological Assessment was published only a few days prior to the publication of the EA. 2 AR 00542. In addition to arguing that the public did not have an opportunity to review the document relied upon by Defendants to demonstrate that they adequately defined the Project, Plaintiffs argue that NPS did not have adequate description of the Project before it reached its final finding of no significant impact. Plaintiffs argue that only the documents the agency had before it at the time it issued the FONSI can be relied upon to support Defendants’ position. Specifically, Plaintiffs claim that Defendants could not have considered the Phase I design plans or the Biological Assessment, because they were published only a few days before the publication of the Revised EA. In response to Plaintiffs arguments regarding the incorporation of the Phase I design plans in the Revised EA, Defendants contend that the plans existed and were considered before they were approved by the Regional Director for the NPS on August 28, 1997. Defendants argue that the Draft Phase 1 Design Plans were developed over a period of time using numerous field reviews and utilizing many different discipline and resource specialists and were signed by the Division Engineer of the Federal Highway Administration on August 20, 1997, and by the NPS Denver Service Center and the Superintendent for Yosemite National Park on August 21, 1997. Defendants argue that portions of the draft Phase I Design Plans appear throughout the project record. Relatedly, Plaintiffs argue that the NPS acted wrongly in incorporating the Phase I design plans into the Revised EA. Plaintiffs rely on an Eastern District case in which Judge Karlton held as follows: I begin by noting that there is no apparent reason’ to believe that an incorporation process is appropriate relative to an EA. Thus although the CEQ regulations permit, under stringent standards discussed below, incorporation by reference in an EIS, 40 C.F.R. § 1502.21, no such provision is made for an EA. On the contrary, the regulations appear to contemplate that an EA will be a concise public document which briefly presents sufficient evidence and analysis for determining whether to prepare an EIS or a FONSI. 40 C.F.R. § 1508.9. Given the purpose of an EA, such restriction on the document does not appear unreasonable. As I explained above, the threshold for requiring an EIS is quite low. Thus only in those obvious, circumstances where no effect on the environment is possible, will an EA be sufficient for the environmental review required under NEPA. Under such circumstances, the conclusion reached must be close to self-evident and would not require an extended document incorporating other studies. Moreover, because the purpose of an EA is to decide whether an EIS must be prepared, 40 C.F.R. § 1501.4(a), (b), (c); Jones v. Gordon, 792 F.2d 821, 827 (9th Cir.1986), the document itself (and any attachments or appendices included with it) must facilitate or enable public comment concerning the agency’s determination that the project does not significantly affect the environment. Cf. Sierra Club v. U.S. Forest Service, 843 F.2d 1190, 1193 (9th Cir.1988). Moreover, even if an EA need not stand on its own, the standards applicable to the incorporation of material into a document created in response to the regulations implementing NEPA are relatively rigid. Application of those standards to the instant EA demonstrates that neither the 1981 DEIS nor the 1983 EA were properly made a part of the determination at bar. As I have previously explained, under certain circumstances the law permits incorporation of materials by reference into an EIS. [FN13] The propriety of such incorporation is dependent upon meeting three standards: 1) the material is reasonably available; 2) the statement is understandable without undue cross reference; and 3) the incorporation by reference meets a general standard of reasonableness. See California v. Bergland, 483 F.Supp. at 485 (incorporation of material into a DEIS), affd. in relevant part, California v. Block, 690 F.2d at 765. Application of the three criteria noted above suggests that the court must find that the 1981 DEIS and the 1983 EA were not incorporated into the 1987 EA. Natural Resources Defense Council v. Duvall, 777 F.Supp. 1533, 1538-39 (E.D.Cal.1991). In footnote 14, Judge Karlton held that the government has the burden of persuasion on this issue. Applying the holding to the present case, Plaintiffs argue that the Phase I design plans were not available until the day of approval or after approval, the EA was not understandable without cross reference, and Defendants were not reasonable in withholding in such information from the public review process. In response, Defendants argue, as stated above, that the Phase I Design Plans existed and were considered before the issuance of the EA. Finally, Plaintiffs further argue that the Phase I design plans and the RFP do not provide a legally adequate project description. Plaintiffs argue that the Phase I plans identify specific features to be saved, yet none identify the extent of removal, blasting and damage to be done. In their Supplemental Brief, Defendants contend that NPS presented the scope of the Project to the public through several means, including the draft EA, the Revised EA, open houses, planning updates, and videos. The court finds, as Plaintiffs argue, that because the Revised EA was issued on August 22, 1997, after the close of the public comment period and the scientific review of the project impacts, it cannot be relied upon as meaningfully providing the detailed definition of the Project required under § 1501.2. The court further finds that Defendants have pointed to nothing in the draft EA showing that document met the requirements of § 1501.2. The draft EA speaks in generalities and contains few details of what would actually be done on the Project, thus making it impossible to relate project elements to project impacts. Lacking is sufficient detail to understand the nature, extent and location of rock removal, tree removal, vegetation removal, rebuilding of guard-walls (particularly the height), and construction of fills into the Merced River or riparian corridor. -Further, there is no mention of uniformly raising the road bed by three feet, which Defendants contend in response to Plaintiffs’.challenge to the increased height of the guardwalls. In regard to the open houses and planning updates, Plaintiffs argue that NEPA requires an adequate project description and evaluation of alternatives in an EA or EIS, and that information presented in another form does not meet this requirement unless it is fully incorporated into the'EA or EIS. Plaintiffs cité Natural Resources Defense Council v. Duvall, 777 F.Supp. 1533 (E.D.Cal.1991), in which Judge Karlton discusses the propriety of incorporating by reference other documents into an EA. In so doing, Judge Karlton states, “Moreover, because the purpose of an EA is to decide whether an EIS must be prepared, ... the document itself (any attachments or appendices included with it) must facilitate or enable public comment concerning the agency’s determination that the project does not significantly affect the environment.” Id. at 1538-39. The court finds this reasoning to be persuasive, and therefore rejects Defendants’ argument that the open houses or project updates may be considered in tandem with the EA in determining whether the EA provided the public with an adequate description of the Project. Plaintiffs also persuasively argue that the videos referred to by Defendants do not constitute a Project description as required under NEPA. The January 1997 video was produced before the Project came into existence and-the October 1998 video was produced after the Project was approved. Neither of these videos satisfy the requirement of an adequate project description under NEPA. In summary, Plaintiffs contend that Defendants failed to comply with the requirement in 40 C.F.R. § 1501.2(b) that each agency shall “Identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses.” Plaintiffs claim both that insufficient detail was provided to allow the public a meaningful opportunity to comment on the Project during the -planning stages and also that insufficient detail existed for Defendants’ own experts to express an informed opinion and for Defendants to make an informed decision. Based on the foregoing, the court concludes that Plaintiffs’ contentions are meritorious and that Defendants violated NEPA by failing to comply with the requirement under 40 C.F.R. § 1501.2(b) that each agency shall “Identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses.” The court finds that Defendants acted arbitrarily and capriciously in failing to provide an adequate description of the Project. The court will grant Plaintiffs summary adjudication on this issue and will issue a corresponding declaratory judgment. The issue of in-junctive relief will be discussed below. C. Identification and Evaluation of Significant Adverse Impacts NEPA requires federal agencies to prepare an EIS for “major federal actions 1536 significantly affecting the quality of the human environment.” 42 U.S.C. S4332(2)(C). Plaintiffs contend that Defendants failed to adequately identify and evaluate significant adverse impacts and so acted arbitrarily or capriciously in not preparing an EIS. “[T]o prevail on a claim that [a federal.agency] violated its statutory duty to prepare an EIS, a ‘plaintiff need not show that significant effects will in fact occur.’ ” [Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir.1998)]. It is enough for the plaintiff to raise substantial questions whether a project may have a ‘significant effect’ on the environment. Id. 1. Controversy Initially, Plaintiffs rely on 40 C.F.R. § 1508.27, which provides that “significantly” as used in NEPA requires considerations of both context and intensity. 40 C.F.R. § 1508.27(b) provides as follows: (b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial. (2) The degree to which the proposed action affects public health or safety. (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. (6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration. (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. (8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of' significant scientific, cultural, or historical resources. (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment. In arguing that Defendants failed to adequately identify and evaluate significant adverse impacts, Plaintiffs rely on subsection (4) above to argue that Defendants failed to correctly evaluate the intensity of the impacts. Specifically, Plaintiffs contend that the Administrative Record is replete with examples of controversy over the environmental effects of the Project. Specifically, Plaintiffs contend that the EA, BA, FONSI and Response to Comments are in direct conflict with and ignore the advice of long-time Park employees and experts. Plaintiffs cite a letter by Yosemite National Park biologist Steve Thompson of April 27, 1997, and a letter of Yosemite National Park historian Jim Snyder, dated April 10,1997. In these letters, the writers express their disagreement with the NPS decision to implement the Project. In response, Defendants cite Northwest Environmental Defense Ctr. v. BPA, 117 F.3d 1520, 1536 (9th Cir.1997), in which the Ninth Circuit explained that, “A federal action is controversial if ‘a substantial dispute exists as to [its] size, nature, or effect.’ LaFlamme, 852 F.2d at 400-01 (internal quotations and citations omitted). Controversy does not refer to the existence of opposition to a use.” Id. at 401. Defendants argue that in their letters, neither Mr. Thompson nor Mr. Snyder were offering expert views. Rather, Defendants argue, they were disagreeing with the policy decision to reconstruct the Road. Defendants argue that policy disagreements of this nature do not rise to the level of “controversy” within the meaning of § 1508.27(b)(4). In their Reply, Plaintiffs argue that the Record establishes that Thompson and Snyder are specialists, and argue that when an EA is at issue, the disagreement among experts is an important factor as to whether substantial questions have been raised about environmental impacts and the need for an EIS. See Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998). In summary, Plaintiffs claim that “the significant disagreement among experts on the viability of the project,” and the post hoc mitigation measures that were adopted, proves that there was a “substantial question” raised as to the environmental impact of the Project and that an EIS was needed. The court finds that Plaintiffs’ contention has merit. Contrary to Defendants’ contention, the letters of Thompson and Snyder both address concerns regarding specific impacts of the Project, and are not limited to opposition to the Project as a whole. The court concludes that its finding supports the larger conclusion that Plaintiffs have raised substantial questions as to whether the Project may have significant effects on the human environment. 2. Biological Resources In further support of their claim that Defendants failed to adequately identify and evaluate significant adverse impacts of the Project, Plaintiffs present several contentions that NPS failed to adequately address significant adverse effects on biological resources. a. biological surveys Plaintiffs contend that inadequate biological surveys were done. Plaintiffs point out that on March 21, 1997, in response to the emergency repairs and safety improvements being made on the Road after the flood, the NPS wrote that the planned safety improvements to the Road would have a “severe and direct impact” on biological resources within the zone of blasting and slope restoration, and indirect impacts to those resources over a larger area. 2 AR 00182. The report also stated that, “[ejxcept for Thompkin’s sedge, for which the impact can be accurately quantified, not enough is known about other sensitive species to ascertain potential impacts with any degree of certainty. This applies to possible bat roosts, as well as to sensitive invertebrates and plants for which appropriate habitat may be present.” Id. Plaintiffs claim that six weeks later, however, before doing any other species surveys, on May 7, 1997, the NPS issued the Draft EA and declared that, “[application of mitigation measures during and after the construction period would assure that construction-related impacts on sensitive species would be minimized as much as practicable and would not be significant.” (2 AR 00477). The Draft EA also states that there is no data “that suggests that the proposed action would impact sensitive wildlife species in the area.” Id. Plaintiffs allege that although the draft EA states that a Biological Assessment would address the sensitive species designated by U.S. Fish and Wildlife, the Biological Assessment was completed before any surveys were done on any of the sensitive species in the project other than federally listed Thompkin’s Sedge. Plaintiffs further allege that if any other surveys were performed, they are not included in the record and were therefore not relied on by the agency in preparing the EA or in issuing the FONSI. Furthermore, Plaintiffs contend that the FONSI mitigation measures requiring species surveys be conducted before road construction is further evidence that no surveys for species were performed prior to assessing environmental consequences in the Final EA and prior to issuing the FONSI. In response to Plaintiffs’ contentions that inadequate biological surveys were done, Defendants contend that Plaintiffs ignore statements in the revised EA and FONSI establishing that further studies were done and sensitive species were either absent from the project vicinity or would suffer insignificant impacts from construction, citing 2 AR 00617 and 4 AR 00971. The first citation given by Defendants, 2 AR 00617, comprises page 81 of the EA. Contained on that page is the following language: No data exist that suggest that the proposed action would impact sensitive wildlife species in the area. Following recommendations in the draft EA, a biological assessment' (BA) has been prepared throughout the construction area to address the sensitive species listed in Table 4.1. Results from this BA determined whether or not sensitive species exist in the immediate area and developed mitigation measures to ensure that construction activities will not significantly impact any sensitive species that may occur in the area. The field surveys and analysis completed during the BA found that sensitive species identified in the draft EA as possibly being present in the project area are absent from the project vicinity or would suffer insignificant impacts to their population from' construction. This includes federally listed threatened and endangered species. The USFWS has reviewed the BA and concurs with the findings. (Appendix A). The second citation given by Defendants, 4 AR 00971, comprises page 12 of the “Response to Comments for El Portal Improvements,” issued in August of 1997. That page provides in part as follows: A few comments were received expressing concern for wildlife and sensitive species. As previously mentioned, habitat areas along the El Portal Road and the Wild and Scenic Merced River will either be preserved or restored as a part of the proposed project. A NPS staff of natural resource specialists (including a landscape architect, a biologist, and a revegetation specialist) will make inspections to review the extent of impacts to the environment and maké sure the reconstruction activities do not escalate beyond the scope of the environmental assessment. This staff will also direct the contractor where to place snow fence to delineate construction limits and review construction plans submitted during the design/build process. Additional Biological Field Studies. Following recommendations in the draft EA, substantial additional biological field studies and analysis have been conducted. The surveys found that sensitive species identified in the draft EA as possibly present in the project area are absent from the project vicinity or would suffer insignificant impacts to their populations from construction. These field studies and analyses have focused on identifying presence of sensitive species in the corridor area and evaluating the potential for impact on them. The studies were conducted in May and June, 1997. The studies were conducted by experienced biologists with expertise in bats and other sensitive mammals; insects; invertebrates; birds, including raptors, owls, and songbirds; amphibians; and reptiles. Surveys for sensitive plant species were conducted by Yosemite National Park staff in April 1997. The NPS determined that proposed action will not adversely affect any listed species or their habitats. The U.S. Fish and Wildlife Service (USFWS) concurred with the finding. Defendants argue that the studies referred to in these two statements were conducted in April through June 1997, before the FONSI, and were approved by the U.S. Fish and Wildlife Service. See Friends of Endangered Species v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985) (where virtual agreement existed among local, state, and federal government officials, private parties, and local environmentalists on a project and on the content of the EIR/EA, the extensive coordination and agreement between the state and federal government was a -factor supporting the agency’s decision not to prepare an Environmental Impact Statement). In response to Defendants’ claims that surveys were conducted in April through June of 1997, Plaintiffs contend in their Reply that if such studies were done, they are not in the administrative record. Plaintiffs argue that the court cannot assume such surveys exist unless they are produced. In response to the statement in the Draft EA that there is no data “that suggests that the proposed action would impact sensitive wildlife species in the area,” Plaintiffs argue that Defendants failed to do the necessary research to reach this conclusion. Defendants also argue that the EA and FONSI imposed a mitigation measure that prior to any construction, there would be additional surveys for “sensitive plants, bat roosts, nesting birds, and snails to at least 20 feet outside the construction zones.” 4 AR 01111. Conservation measures are required if any sensitive species are located. Id. In addition, the Park Service Staff of natural resources specialists were required to conduct inspections to make sure the reconstruction activities did not escalate beyond the scope of the EA. Id. In their Supplemental Brief, Defendants cite Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir.1985), for the principle that NEPA does not require the forefront of scientific methodology. However, in Friends of Endangered Species, the Ninth Circuit held as follows: NEPA does not require that we decide whether an EIR is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology. See Hart and Miller Islands Area Environmental Group, Inc. v. Corps of Engineers of the U.S. Army, 505 F.Supp. 732, 755 (D.Md.1980); Cabinet Mountains Wilderness v. Peterson, 510 F.Supp. 1186, 1190-91 (D.D.C.), affirmed 685 F.2d 678 (D.C.Cir.1982). Our task is simply to ensure that the procedure followed by the Service resulted in a reasoned analysis of the evidence before it, and that the Service made the evidence available to all concerned. Save Lake Washington v. Frank, 641 F.2d 1330, 1337 (9th Cir.1981); Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir.1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). The Service, in the present case, sought out and considered extensive comments on the Biological Study during the public comment period and afterward, and incorporated these comments into its Permit Findings and final Plan. Because the Service was unaware of appellant’s specific field study criticisms before making its decision, we certainly cannot fault the Service for failing to address these criticisms. Id. at 986 (emphasis added). Whether the procedure followed by the NPS “resulted in a reasoned analysis of the evidence before it” and whether the NPS made the evidence available to all concerned is exactly what is now at issue. In their Supplemental Brief, Defendants present the declaration of Thomas Wilkinson Mulroy regarding the research and field surveys conducted in connection with the NEPA analysis for the Project. Defendants assert that “[a]ll available field notes and survey reports prepared in relation to the BA have been attached to the Declaration of Dr. Thomas Mulroy.” Supplemental Brief, 24:28 — 25:1. Defendants rely upon this declaration to establish that the conclusions of the Biological Assessment were based on extensive research and field surveys. However, Defendants state that the field notes and survey reports “were not included in the Administrative Record for this case because, as explained by Dr. Mulroy, the contract between Science Applications International Corporation (SAIC) and the National Park Service did not require that SAIC provide intermediate survey reports or field notes to the NPS. As explained by Dr. Mulroy, the BA followed immediately from completion of the filed [sic] studies, obviating the need for an intermediate product.” As Plaintiffs point out, through this statement, Defendants have admitted both that the “hard data” supporting the BA was not available to the public for review and that it was never reviewed by NPS. The court finds, therefore, that in regard to the evaluation of biological resources, Defendants have failed to comply with the requirement of 40 C.F.R. § 1500.1(b) that, “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” The court concludes that this finding supports Plaintiffs’ main contention that Defendants failed to identify and evaluate significant adverse impacts. c. revegetation plan Plaintiffs contend that the Biological Assessment makes an unfounded proposition which was used to support NPS’s decision to issue a FONSI. Specifically; it states that, “[t]he unique characteristics, special features, and habitat areas along El Portal Road and the wild and scenic Merced River will either be preserved or replaced as part of the proposed project.” 5 AR 01199. Plaintiffs argue that neither the EA nor the FONSI expláin how the NPS will replace 100 year-old trees that have been or are being cut down. Plaintiffs assert that even if the NPS wanted to replace cut trees, they have no information on the number, size or species of trees being removed during the project construction. Plaintiffs further contend that the Tompkiris sedge salvage operation was done long before the revegetation plan was issued on May 20, 1999. Plaintiffs claim that approximately 90% of the sedge dies after being transplanted, which Plaintiffs argue is a significant impact. In response, Defendants argue that the Revised EA explained that except for the roadway itself, the area affected would be revegetated. 2 AR 00615. The Revised EA also pointed out that vegetation in the area is resilient because of the naturally high occurrence of floods, fires-and rock-slides. Id. Defendants argue that it cannot be seriously contended that the Park Service committed a clear error in judgment in concluding these impacts would not be significant. Plaintiffs argue in their Reply that the site specific revegetation plans were not part of the EA, BA or FONSI, and were not created May 20, 1999. Plaintiffs complain that the plan is incomplete because it still does not “establish clear-cut success criteria,” spell out the details of a long-term monitoring plan, discuss remedial action to adopt if the success criteria are met, provide specifics on the number of plants of each species to be established, or provide maps showing where these plants will be located. Plaintiffs quote Park biologist Thompson, who advised that, “the use of ‘concrete-reinforced’ rock fill leaves little chance for re-establishment of riparian vegetation.” 6 AR 01656. In response, Defendants argue that the Park Service required mitigation measures including irregular ledges, shelves, planting pockets, benches,' and irregularities designed into cuts and slopes for vegetation and revege-tation. 2 AR 00971, 01113-1114. In their Supplemental Reply Brief, Defendants argue that mitigation measures in the form of the revegetation programs are mandated by contract but can only be implemented upon completion of the Project. This is because the revegetation programs cannot proceed on unstable slopes or with uncontrolled drainage. Further, Defendants provide a declaration by the Natural Resources Project Manager for the Flood Recovery Office at Yosemit